Citation Nr: 1434936
Decision Date: 08/06/14 Archive Date: 08/20/14
DOCKET NO. 09-39 192 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado
THE ISSUES
1. Whether new and material evidence has been submitted to reopen a claim for Restless Leg Syndrome (RLS), previously claimed as bilateral leg cramps.
2. Entitlement to service connection for RLS, previously claimed as bilateral leg cramps, to include as secondary to medication for service-connected anxiety disability.
3. Entitlement to service connection for bilateral hip disability secondary to service connected bilateral knee disabilities.
4. Whether new and material evidence has been submitted to reopen a low back disability secondary to service-connected bilateral knee disabilities.
5. Entitlement to service connection for sleep apnea, to include as secondary to service-connected anxiety.
6. Entitlement to initial increased rating in excess of 30 percent disabling for an acquired psychiatric disability, to include anxiety and major depressive disorder.
7. Entitlement to a total disability rating due to individual unemployability (TDIU).
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. Acosta, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1993 to October 1997.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of a October 2008 rating decision which denied reopening a service connection claim for RLS previously claimed as leg cramps; a March 2009 rating decision which denied service connection for a bilateral hip disability; an October 2009 rating decision which granted service connection for an acquired psychiatric disability and provided an initial disability rating of 30 percent; a July 2011 rating decision which denied service connection for sleep apnea; and a April 2012 rating decision which denied reopening a service connection claim for a low back disability. All claims originated at the Denver, Colorado Regional Office (RO) of the Department of Veterans Affairs (VA).
The Veteran participated in a video hearing at the RO on December 3, 2009.
The issue of entitlement to service connection for a cervical spine disability secondary to service connected bilateral knee disabilities has been raised in a May 2011 correspondence to VA, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013).
The issues of entitlement to service connection for RLS, previously claimed as bilateral leg cramps, to include as secondary to medication for service connected anxiety disability; whether new and material evidence has been submitted to reopen a low back disability, secondary to service-connected bilateral knee disabilities; entitlement to service connection for sleep apnea, to include as secondary to service connected anxiety; entitlement to initial increased rating in excess of 30 percent disabling for an acquired psychiatric disability, to include anxiety and major depressive disorder; and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.
FINDINGS OF FACT
1. Affording the Veteran the benefit of the doubt her bilateral hip disability was aggravated by her service-connected bilateral knee disabilities.
2. In an unappealed February 1999 rating decision, the RO denied service connection for bilateral leg cramps on the basis that there was no current disability shown.
3. The evidence added to the record since the February 1999 Board decision, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for RLS previously claimed as bilateral leg cramps.
CONCLUSIONS OF LAW
1. The criteria for service connection for a bilateral hip disability secondary to service-connected bilateral knee disabilities are met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013).
2. The February 1999 rating decision denying service connection for RLS previously claimed as bilateral leg cramps is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2013).
3. New and material evidence sufficient to reopen the Veteran's claim of entitlement for service connection for RLS, previously claimed as bilateral leg cramps, has been submitted; and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006).
Since the Board is granting the Veteran's request to reopen her claim for service connection for RLS, previously claimed as a bilateral leg cramps, and granting service connection for a bilateral hip disability, there is no need to discuss whether the Veteran has received sufficient notice with regard to these claims, given that any error would be harmless.
New and Material Evidence
New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2013).
For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993).
If VA determines that new and material evidence has been added to the record, the claim is reopened, and VA must evaluate the merits of the Veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996).
The Veteran was denied service connection in a February 1999 rating decision because there was no competent evidence that the Veteran had a current chronic bilateral leg cramps. The Veteran has since submitted evidence in the form of a June 2010 VA treatment note wherein a VA clinician recorded a diagnosis of RLS.
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. 38 C.F.R. § 3.156(a) (2013); Shade v. Shinseki, supra.
The diagnosis of RLS is new in that it was not previously of record. It is also material because it relates to unestablished facts necessary to substantiate the Veteran's claim. Specifically, due to the prior lack of evidence showing a diagnosis, this evidence of a diagnosis is not only new evidence, it is material because it resolves an element that was previously not shown, a current disability. See Shade, supra.
Accordingly, the Board finds that new and material evidence has been submitted, and the claim for service connection for RLS is reopened. 38 U.S.C.A. § 5108 (West 2002). However, further development must be conducted before the Board may address the underlying claim for service connection on the merits.
Secondary Service Connection
Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2013). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b) (2013); Allen v. Brown, 8 Vet. App. 374 (1995).
In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b).
Bilateral Hip Disability
The Veteran contends that her bilateral hip disabilities are caused by her service-connected bilateral knee disabilities.
In a June 2011 private examination, the Veteran has been diagnosed as having sacroiliac spine, and pelvis complicated by aparaspinal myofascitis. The June 2011 private examiner opined that the Veteran's distortion of the pelvis was the result of her gait disturbance, and this gait disturbance was predicated by injury to her left knee and subsequent right knee disability.
In considering the foregoing, the Board finds that all the criteria for service connection on a secondary basis are met, and service connection is warranted for the Veteran's bilateral hip disability as secondary to her service-connected bilateral knee disabilities.
ORDER
New and material evidence having been received, the request to reopen the previously denied claim for service connection for RLS, previously claims as bilateral leg cramps, is granted. To this extent, and this extent only, the appeal is granted.
Entitlement to service connection for a bilateral hip disability secondary to service-connected knee disabilities is granted, subject to the laws and regulations governing the award of monetary benefits.
REMAND
Private Medical Records
In regard to the Veteran's acquired psychiatric disability currently rated at 30 percent, the Board notes that in May 2008 the Veteran submitted a "Consent to Release Information" (Form 4142) in which she listed a private examiner who treated her for depression from "00/04 to 00/08." The RO seems to have acknowledged the Form 4142, but determined that the development was already accomplished because previous medical records from the private examiner were in the claims file as a note references "Already RCD See Vol 1." This assumption was flawed. The first volume of the claims folder ends with a communication from the Veteran in December 2007. Thus, it is not possible that the appropriate development was accomplished. Therefore, as the this claim is for an initial increased rating from March 23, 2008, these records may be pertinent to the disposition of the increased rating claim and should be obtained.
VA Examinations
As to the Veteran's RLS claim, to include as secondary to anxiety medication, the most recent VA examination for RLS was, in part, inadequate. The rationale provided by the VA examiner was flawed. The examiner provides a diagnosis of nocturnal leg cramps and provides a rationale that these cramps are transitory and occur or get worse during pregnancy. However, the only reference to pregnancy is in the Veteran's active service, not at the time of her examination. Further, the VA examiner does not adequately address the diagnoses of RLS from both the June 2011 VA clinician and the March 2011 private physician. Additionally, the VA examiner does not address the Veteran's contention that her anxiety medication is aggravating her RLS. See Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (VA examination must provide sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). The Board thus finds a new VA examination/opinion is warranted.
In connection with the Veteran's sleep apnea claim, to include as secondary to anxiety, she was provided a VA examination in January 2014. This opinion only addressed the claim on a secondary basis, that her sleep apnea was aggravated by her service connected acquired psychiatric disability, and does not address the Veteran's contention that her sleep apnea began and has continued since service. The Board notes that a previous VA examiner, in June 2012,addressed the Veteran's direct service connection claim in part; however, this examination is inadequate. The June 2012 examiner, in addressing a third party statement from the Veteran's ex-husband, appears to not have considered the entire lay statement. The ex-husband indicated that he witnessed the Veteran's snoring and difficulty breathing during active service. The examiner only addressed this statement by asserting that snoring is not enough to diagnose sleep apnea without addressing the portion of the statement that asserted that the Veteran had difficulty breathing. See Stefl v. Nicholson, supra. Thus, the Board finds a new VA examination is warranted.
Issuance of SOC
Regarding, the Veteran's request to reopen a claim of service connection for a low back disability, to include as secondary to service-connected bilateral knee disabilities, the Board notes that Veteran was originally denied service connection in an April 2012 rating decision. The Veteran subsequently filed what the Board interprets as a Notice of Disagreement in June 2012. Thus, a remand is required so that the AOJ can issue an SOC as to this claim. See Manlincon v. West, 12 Vet.App. 238, 240-41 (1999) (vacating a Board decision and remanding a matter where VA failed to issue a SOC after the veteran filed a timely NOD).
TDIU
The Veteran's private examiner stated in a September 2011 psychiatric examination that "I seriously doubt that she would be able to maintain any type of regular sustained employment at this time or in the near future unless she is able to get her anxiety, depression, and panic attacks symptoms under better control." The Board acknowledges the United states Court of Appeals for Veterans Claims (Court) holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the Court held that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is considered unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. The Board finds that the above statement from the record raises an implicit TDIU claim based on her pending claim for an increased evaluation for her psychiatric condition.
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran and request that she identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated her for acquired psychiatric disability. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records.
Specifically, request that the Veteran submit an authorization for release of medical records relating to psychiatric treatment from a private examiner located at 576 Apollo Drive Circle Pines, MN 55014 from 2004 to 2008. This private examiner was listed in a Form 4142 submitted to VA in May 2008.
If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159.
2. Thereafter, schedule the Veteran for VA examination(s). The Veteran's claims folder (including a copy of this remand) must be provided to and reviewed by the VA examiner(s) as part of the examination(s). A notation to the effect that this review has taken place should be made in the evaluation report. All studies, tests, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report.
(A). After taking a detailed history from the Veteran regarding her RLS and considering the pertinent information in the record in its entirety, the VA examiner should opine whether it is at least as likely as not, i.e. 50 percent probability or greater, that the Veteran's RLS is caused or aggravated by the Veteran's service connected acquired psychiatric disability, to include the medication used to treat this acquired psychiatric disability.
(B). After taking a detailed history from the Veteran regarding her sleep apnea and considering the pertinent information in the record in its entirety, the VA examiner should opine whether it is at least as likely as not, i.e. 50 percent probability or greater, that the Veteran's sleep apnea is caused or aggravated by the Veteran's service connected acquired psychiatric disability or directly related to the Veteran's active service.
The examiner should comment on the May 2009 statement submitted by the Veteran's ex-husband which reports the Veteran snored and had difficulty breathing in service.
Additionally, the examiner should comment on the Veteran's theory that her acquired psychiatric disability aggravates her sleep apnea because she is unable to where the mask for her CPAP machine due to her anxiety.
If the examiner determines that an opinion cannot be provided without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. The AOJ should ensure that any additional evidentiary development suggested by the VA examiner should be undertaken so that a definite opinion can be obtained.
3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate.
4. Provide the Veteran an SOC on whether new and material evidence has been submitted to reopen her claim for service connection claim for a low back disability, to include as secondary to service-connected bilateral knee disabilities and/or her now service-connected bilateral hip disability.
5. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues entitlement to service connection for RLS, previously claimed as bilateral leg cramps, to include as secondary to medication for service connected anxiety disability; entitlement to service connection for sleep apnea, to include as secondary to service-connected anxiety; entitlement to initial increased rating in excess of 30 percent disabling for an acquired psychiatric disability, to include anxiety and major depressive disorder; and entitlement to TDIU. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs